2 Ala. 253 | Ala. | 1841
— However equitable may be the order of the County Court, directing distribution of the money, which both Sanford and the plaintiff were seeking to recover, we think it cannot be sustained upon principles of law.
As soon as the amount of the plaintiff’s execution against Stewart, was collected by the sheriff, the money was considered as in the custody of the law ; and the plaintiff might, after demand of the sheriff, upon one day’s notice, have moved the County Court for judgment against him, and recovered the amount received. [Aik. Dig., s. 76, p. 174.]
Whether a claim in suit, or which has been prosecuted to judgment, can be attached by garnishment, so as to defeat the plaintiff in the suit or judgment in a recovery of the money, is a question on which the authorities do not entirely agree. In Grayson vs. Veech, 12 Martin’s Rep. 688, it was held, that as the statute of Louisiana authorised the effects and credits of absent debtors to be attached, it was competent for .the plaintiff in an attachment to cause the amount of a judgment lately recovered against himself by the defendant, to be attached. And in McCarty vs. Emlen, 2 Yeates’ Rep. 190, McKean, Ch. Justice, determined that a debt in suit might be attached in the hands of the defendant in the suit. But in Wallace vs. McConnell, 13 Peters’ Rep. 136, it was decided, that a debt, for the recovery of which a suit was pending in the District Court of the United States, could not be attached by process issuing from a county court — that the priority of the suit will determine the right. “ And where the suit in one court is com
It has been repeatedly adjudged, that money collected by a sheriff in virtue of an execution, cannot be attached. While it remains in his bands, it is the custody of the law. It does not become the property of the judgment creditor until it is paid over, and consequently is not liable to be attached as his. The writ of garnishment could not supersede the execution, or release the sheriff from a literal compliance with its command, which required him to bring the money into court, so that it might be subject to its order. Ross vs. Clark, 1 Dall. Rep. 354; Alston vs. Clark, 2 Hayw. Rep. 171; Dawson vs. Holcomb, 1 Hammonds’ Rep. 275. Cases have frequently occurred, in which the sheriff has been directed to appropriate money in his hands to the satisfaction of a judgment against the party entitled to it, or in which the right to receive the proceeds of a judgment is contested. In such cases, a decision of the court is necessary to guide and protect the officer in the performance of his duties. But the present was not a proceeding of the character of either of these.
As our judgment may rest upon less disputable ground, we decline expressing an opinion whether the debt due from Stewart to the plaintiff, could be reached by garnishment. It does not appear that a judgment was recovered by Sanford either
The entry in the County Court, so far it relates to Sanford’s right to the money in controversy, is wholly unsustained. The proceeding is of a summary character, and according to principles recognized here, must be sustained by the allegations and recitals in the record, and cannot be aided by intendment.
The judgment of the County Court must be reversed, and the cause remanded.